Employer vs. Employee – Who Was Telling the Truth in Workers’ Compensation Claim?

In a recent WSIB Appeals Tribunal case Decision No. 1599/17, 2017 ONWSIAT 2025, a 59-year old electrician attended at his doctor’s office on October 5, 2011, complaining of injuries he had sustained in a workplace accident the day before and indicated that he had fallen off a ladder when installing a pot light in a newly-constructed home injuring his arm, shoulder, back and face. The electrician did not return to his pre-injury job with the employer and instead filed a claim with the Workplace Safety and Insurance Board.

The Board initially granted him Loss of Earnings benefits arising from the accident. However, the employer objected and asked the Board to reconsider and the Board reversed its decision. The matter eventually proceeded to the WSIB Appeals Tribunal for its consideration.

At issue was the fact that the electrician and the employer had completely divergent accounts of what happened, and the evidence advanced to support their respective versions was contradictory.

The employer claimed that the electrician had fabricated the fall from the ladder in order to claim WSIB benefits for injuries he sustained elsewhere. According to the employer, the electrician had told him that he had an accident on an all-terrain vehicle the weekend before in which his daughter’s leg was also fractured. In this regard, the employer had some evidence from other employees who apparently corroborated this. Further, the employer noted that the electrician did not report the alleged fall until days after he said it occurred.

In contrast, the electrician admitted that he had been involved in a minor ATV accident, but claimed his injuries consisted only of scrapes and that his daughter’s leg was uninjured. The electrician also had witnesses who confirmed a version of events consistent with his having fallen off a ladder on October 4, 2011, the day before he visited his doctor. The electrician provided evidence that he had been threatened by the employer’s son not to report the ladder accident or file a claim with the WSIB.

Upon hearing and weighing all the evidence, the Appeal Tribunal allowed the electrician’s appeal.

The Appeal Tribunal noted the dramatically opposed accounts of the parties and stated: “there is no middle ground in these two positions.”

In deciding the matter, the Tribunal stressed that the standard of proof in workers’ compensation proceedings a the balance of probabilities and that a claimant was entitled to the benefit of the doubt where the evidence for and against was approximately equal in weight. The Tribunal also stressed that in order to conduct a proper assessment, it was entitled to take a “fresh look” at all the evidence.

The Tribunal noted that the previous decision to deny the electrician’s claim had hinged on accepting the employer’s evidence that the electrician had been involved in a serious ATV accident and that he had arrived at work “all banged up”, and that his daughter had fractured her leg. However, the daughter herself gave evidence that the leg fracture never occurred. Accordingly, in reaching its determination, the Appeal Tribunal said:

In determining the weight that I give to this evidence [by the employer], I must consider the testimony of the worker and his daughter. The worker acknowledged that he was involved in an accident while driving an ATV on October 2, 2011, but that it was a minor incident in which the front brakes locked causing him and his daughter to fall off the ATV. He testified that he scraped his shin and that his daughter had no injury. There was no need for medical or hospital treatment. The worker’s daughter provided a similar description of the accident in her testimony. She stated that she suffered no injuries and that she has never sustained a fracture to her leg.

The daughter’s evidence was also supported by the results of the investigation into the electrician’s benefits eligibility, undertaken immediately after the accident which turned up no hospital records in relation to either the electrician or his daughter.

In the end, the Appeal Tribunal reached the conclusion that on the best and most compelling evidence before it, the ATV accident was a minor one resulting in no serious injury to the electrician and that the Board had no basis for rescinding the electrician’s benefits entitlement in the first place and that the fall from the ladder had occurred as the electrician described. The electrician’s appeal was allowed, and he was granted initial entitlement for a workplace accident occurring October 4, 2011 as he claimed.

Client Testimonials

Van Dyke Injury Law Blog

Everyone knows the old expression, “Stick and stones may break my bones, but names will never hurt me.” Meant to encourage children to steel themselves against teasing or name-calling, the rhyme has endured as timeless, common-sense wisdom. But as the world evolves, that old advice (“just ignore it”) is becoming less prevalent. Society is slowly […]

Share this:

No one wants to imagine their child being injured in a car crash, but the statistics are clear and they indicate motor vehicle collisions are the number one cause of death for children in Canada as 10,000 children are injured in collisions every single year. Everyone knows that car seats are important, but it is […]